Good morning, Chairman
Inhofe, Senator Jeffords and Members of the Committee.My name is Jamie Rappaport Clark, Senior
Vice President for Conservation Programs at the National Wildlife Federation,
the nation’s largest conservation education and advocacy organization.I am here to testify on behalf of National
Wildlife Federation, as well as Defenders of Wildlife, the Endangered Species
Coalition, Fund for Animals, Humane Society of the United States, Military
Toxics Project, Public Employees for Environmental Responsibility, Public
Interest Research Group, Natural Resources Defense Council, and World Wildlife
Fund.I thank the Committee for this
opportunity to testify on the Administration’s Readiness and Range Preservation Initiative.

Prior to arriving at the National Wildlife
Federation in 2001, I served for 13 years at the U.S. Fish and Wildlife
Service, with the last 4 years as the Director of the agency.Prior to that, I served as Fish and Wildlife
Administrator for the Department of the Army, Natural and Cultural Resources
Program Manager for the National Guard Bureau, and Research Biologist for U.S.
Army Medical Research Institute.I am
the daughter of a U.S. Army Colonel, and lived on or near military bases
throughout my entire childhood.

Based on this experience, I
am very familiar with the Defense Department’s long history of leadership in
wildlife conservation.On many
occasions during my tenures at FWS and the Defense Department, DOD rolled up
its sleeves and worked with wildlife agency experts to find a way to comply
with environmental laws and conserve imperiled wildlife while achieving
military preparedness objectives.

The Administration now
proposes in its Readiness and Range
Preservation Initiative that Congress scale back DOD’s responsibilities to
conserve wildlife and to protect people from the hazardous pollution that DOD
generates.This proposal is both
unjustified and dangerous.It is
unjustified because DOD’s longstanding approach of working through compliance
issues on an installation-by-installation basis works.As DOD itself has acknowledged, our armed
forces are as prepared today as they ever have been in their history, and this
has been achieved without broad exemptions from environmental laws.

The DOD proposal is
dangerous because, if Congress were to broadly exempt DOD from its
environmental protection responsibilities, both people and wildlife would be
threatened with serious, irreversible and unnecessary harm.Moreover, other federal agencies and
industry sectors with important missions, using the same logic as used here by
DOD, would line up for their own exemptions from environmental laws.

My expertise is in the
Endangered Species Act (ESA), soI
would like to focus my testimony on why exempting the Defense Department from
key provisions of the ESA would be a serious mistake.I will rely on my fellow witnesses to explain why the proposed
exemptions from other environmental and public health and safety laws is
similarly unwise.

Concerns with the ESA Exemption

The Defense Department’s proposed ESA exemption
suffers from three basic flaws: it would severely weaken this nation’s efforts
to conserve imperiled species and the ecosystems on which all of us depend; it
is unnecessary for maintaining military readiness; and it ignores the Defense
Department’s own record of success in balancing readiness and conservation
objectives under existing law.

1. Section
2017 Removes a Key Species Conservation Tool

Section 2017 of the Administration’s Readiness and Range Preservation Initiative
would preclude designations of critical habitat on any lands owned or
controlled by DOD if DOD has prepared an Integrated Natural Resources
Management Plan (INRMP) pursuant to the Sikes Act and has provided “special
management consideration or protection” of listed species pursuant to Section
3(5)(A) of the ESA.

This proposal would
effectively eliminate critical habitat designations on DOD lands, thereby
removing an essential tool for protecting and recovering species listed under
the ESA. Of the various ESA protections, the critical habitat provision is the
only one that specifically calls for protection of habitat needed for recovery
of listed species.It is a fundamental
tenet of biology that habitat must be protected if we ever hope to achieve the
recovery of imperiled fish, wildlife and plant species.

Section 2017 would replace this crucial habitat
protection with management plans developed pursuant to the Sikes Act.The Sikes Act does not require the
protection of listed species or their habitats; it simply directs DOD to
prepare INRMPs that protect wildlife “to the extent appropriate.”Moreover, the Sikes Act provides no
guaranteed funding for INRMPs and the annual appropriations process is highly
uncertain. Even the best-laid management plans can go awry when the anticipated
funding fails to come through. Yet, under Section 2017, even poorly designed
INRMPs that allow destruction of essential habitat and put fish, wildlife or
plant species at serious risk of extinction would be substituted for critical
habitat protections.

Section 2017 contains one minor limitation on the
substitution of INRMPs for critical habitat designations: such a substitution
is allowed only where the INRMP provides “special management consideration or
protection” within the meaning of Section 3(5)(A) of the ESA.Unfortunately, this limitation does nothing
to ensure that INRMPs truly conserve listed species.

The term “special management consideration or
protection” was never intended to provide a biological threshold that land
managers must achieve in order to satisfy the ESA.The term is found in Section 3(5) of the ESA, which sets forth a
two-part definition of critical habitat. Section 3(5)(A) states that critical
habitat includes areas occupied by a
listed species that are “essential for the conservation of the species” and
“which may require special management consideration or protection.” Section
3(5)(B) states that critical habitat also includes areas not currently occupied by a listed species that are simply “essential
for the conservation of the species.”

As this language makes clear, an ESA §3(5) finding
by the U.S. Fish and Wildlife Service or National Marine Fisheries Service
(Services) that a parcel of land “may require special management consideration
or protection” is not the same as finding that it is already receiving adequate
protection. Such a finding simply highlights the importance of a parcel of land
to a species, and it should lead to designation of that land as critical
habitat.SeeCenter for Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D.
Ariz. 2003)(rejecting, as contrary to plain meaning of
ESA, defendant’s interpretation of “special management consideration or
protection” as providing a basis for substituting a U.S. Forest Service management
plan for critical habitat protection).By allowing DOD to substitute INRMPs for critical habitat designations
whenever it unilaterally makes a finding of “special management consideration
or protection,” Section 2017 significantly weakens the ESA.

Section 2017 is also problematic because it would
eliminate many of the ESA Section 7 consultations that have stimulated DOD to
“look before it leaps” into a potentially harmful training exercise. As a
result of Section 7 consultations, DOD and the Services have routinely
developed what is known as “work-arounds,” strategies for avoiding or
minimizing harm to listed species and their habitats while still providing a
rigorous training regimen.

Section 2017 purports to retain Section 7
consultations. However, the duty to
consult only arises when a proposed federal action would potentially jeopardize
a listed species or adversely modify or destroy its critical habitat.By removing critical habitat designations on
lands owned or controlled by DOD, Section 2017 would eliminate one of the two
possible justifications for initiating a consultation, reducing the likelihood
that consultations will take place. This would mean that DOD and the Services
would pay less attention to species concerns and would be less effective in
conserving imperiled species and maintaining the sustainability of the land.

The reductions in species protection proposed by
DOD would have major implications for our nation’s rich natural heritage.DOD manages approximately 25 million acres
of land on more than 425 major military installations. These lands are home to
at least 300 federally listed species.Without the refuge provided by these bases, many of these species would
slide rapidly toward extinction.These
installations have played a crucial role in species conservation and must
continue to do so.

2. The ESA Exemption is Not Necessary to Maintain Military Readiness

The ESA already has the flexibility needed for the
Defense Department to balance military readiness and species conservation
objectives.Three key provisions
provide this flexibility.First, under
the consultation provision of Section 7(a)(2) of the Act, DOD is provided with
the opportunity to develop solutions in tandem with the Services to avoid
unnecessary harm to listed species from military activities.Typically, the Services conclude, after
informal consultation, that the proposed action will not adversely affect a
listed species or its designated critical habitat or, after formal
consultation, that it will not likely jeopardize a listed species or destroy or
adversely modify its critical habitat.See, e.g., U.S. Army Environmental
Center, Installation Summaries from the
FY 2001 Survey of Threatened and Endangered Species on Army Lands (August
2002) at 9 (noting successful conclusion of 282 informal consultations and 36
formal consultations, with no “jeopardy” biological opinions).In both informal and formal consultations,
the Services either will recommend that the action go forward without changes,
or it will work with DOD to design “work arounds” for avoiding and minimizing
harm to the species and its habitat.In
either case, DOD accomplishes its readiness objectives while achieving ESA
compliance.

Second, under Section 4(b)(2) of the ESA, the
Services are authorized to exclude any area from critical habitat designation
if they determine that the benefits of exclusion outweigh the benefits of
specifying the area.(An exception is
made for when the Services find that failure to designate an area as critical
habitat will result in the extinction of a species – a finding that the
Services have never made.)In making
this decision, the Services must consider “the economic impact, and any other relevant impact” of the
critical habitat designation.DOD has
recently availed itself of this provision to convince the U.S. Fish and
Wildlife Service to exclude virtually all of the habitat at Camp Pendleton –
habitat deemed critical to five listed species in proposed rulemakings -- from
final critical habitat designations.Thus, for situations where the Section 7(a)(2) consultation procedures
place undue burdens on readiness activities, DOD already has a tool for working
with the Services on excluding land from critical habitat designation. Attached
to my testimony is a factsheet that shows how the Services have worked
cooperatively with DOD on these exclusions, and another factsheet showing the
importance of maintaining the Services’ role in evaluating proposed exclusions.

Third, under Section 7(j) of the ESA an exemption
“shall” be granted for an activity if the Secretary of Defense finds the
exemption is necessary for reasons of national security.To this date, DOD has never sought an
exemption under Section 7(j) -highlighting the fact that other provisions of
the ESA have provided DOD with all the flexibility it needs to reconcile
training needs with species conservation objectives.

Where there are site-specific conflicts between
training needs and species conservation needs, the ESA provides these three mechanisms
for resolving them in a manner that allows DOD to achieve its readiness
objectives.Granting DOD a nationwide
ESA exemption, which would apply in many places where no irreconcilable
conflicts between training needs and conservation needs have arisen, would be
harmful to imperiled species and totally unnecessary to achieve readiness
objectives.

a. DOD Has Misstated the Law Regarding Its Ability
to Continue with a Cooperative, Case-by-Case Approach to Critical Habitat
Designations

DOD has stated that the ESA exemption is necessary because a
recent court ruling in Arizona would prevent DOD from taking the cooperative,
case-by-case approach to critical habitat designations that was developed when
I served as Director of the Fish and Wildlife Service.This description of the court ruling is
inaccurate – the ruling clearly allows DOD to continue the cooperative,
case-by-case approach if it wishes.

The court ruling at issue is entitled Center for Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz.
2003). In this case, FWS excluded San Carlos Apache tribal lands from a
critical habitat designation pursuant to ESA §4(b)(2) because the tribal land
management plan was adequate and the benefits of exclusion outweighed the
benefits of inclusion.The federal
district court upheld the exclusion as within FWS’s broad authority under ESA
§4(b)(2).At the same time, the court
held that lands could not legitimately be excluded from a critical habitat
designation on the basis of the “special management” language in ESA §3(5).

Under the court’s reasoning, FWS continues to have the broad
flexibility to exclude DOD lands from a critical habitat designation on the
basis of a satisfactory INRMP and the benefits to military training that the
exclusion would provide.The ruling
simply clarifies that such exclusions must be carried out pursuant to ESA
§4(b)(2) rather than ESA §3(5).Thus,
DOD’s assertion that the Center for
Biological Diversity
ruling prevents it from working with FWS to secure exclusions of DOD lands from
critical habitat designations is inaccurate.

b. DOD’s Anecdotes Do Not
Demonstrate That the ESA HasReduced
Readiness

The DOD
has offered a series of misleading anecdotes describing difficulties it has
encountered in balancing military readiness and conservation objectives. Before
Congress moves forward with any exemption legislation, the appropriate
Congressional committees should get a more complete picture of what is really
happening at DOD installations.

Some of DOD’s anecdotes are simply unpersuasive on
their face, such as DOD’s repeated assertion that environmental laws have
prevented the armed services from learning how to dig foxholes and that troops
abroad have been put at greater risk as a result.There is simply no evidence that environmental laws have ever
prevented foxhole digging.Moreover,
given its vast and varied landholdings and the many management options
available, the Defense Department certainly can find places on which troops can
learn to dig foxholes without encountering endangered species or other
environmental issues.

Other
anecdotes have simply disregarded the truth.For example, DOD and its allies have repeatedly argued that more than 50
percent of Camp Pendleton may not be available for training due to critical
habitat designations.In fact, only
five species have been proposed for critical habitat designations at Camp
Pendleton.In each of these five
instances, DOD raised concerns about impacts to military readiness, and in each
instance, FWS worked closely with DOD to craft a solution.FWS ultimately excluded virtually all of the
habitats for the five listed species on Camp Pendleton from critical habitat
designations – even though FWS had earlier found that these habitats were
essential to the conservation of the species.As a result of FWS’s exclusion decisions, less than one percent of the
training land at Camp Pendleton, and less than 4 percent of all of Camp
Pendleton, is designated critical habitat.(Most of the critical habitat designated at Camp Pendleton is
non-training land leased to San Onofre State Park, agricultural operations, and
others.DOD’s repeated suggestion that
more than 50 percent of Camp Pendleton is at risk of being rendered off-limits
to training due to critical habitat is simply inaccurate.

DOD also
has argued that training opportunities and expansion plans at Fort Irwin have
been thwarted by the desert tortoise.Yet just two weeks ago this official line was contradicted by the
reality on the ground.In an article
dated March 21, 2003, Fort Irwin spokesman
Army Maj. Michael Lawhorn told the Barstow Desert Dispatch that he is unaware
of any environmental regulations that interfere with troops' ability to train
there. He also said there isn't any environmental law that hinders the
expansion.

Attached to my testimony is a
factsheet outlining a series of additional misleading anecdotes used by DOD and
the additional facts that must be considered before drawing any conclusions
about the impact of the ESA on military readiness.

These examples of misleading anecdotes highlight the
need for Congress to look behind the reasons that are being put forward by DOD
as the basis for weakening environmental laws. DOD uses the anecdotes in an
attempt to demonstrate that conflicts between military readiness and species
conservation objectives are irreconcilable.However, solutions to these conflicts are within reach if DOD is willing
to invest sufficient time and energy into finding them.DOD has vast acres of land on which to train
and vast stores of creativity and expertise among its land managers. With
careful inventorying and planning, DOD can find a proper balance.

Has DOD made the necessary effort to inventory and
plan for its training needs?In June
2002, the General Accounting Office issued a report entitled “Military Training: DOD Lacks a Comprehensive Plan
to Manage Encroachment on Training Ranges,” suggesting that the answer is
no.The GAO found:

·DOD
has not fully defined its training range requirements and lacks information on
training resources available to the Services to meet those requirements, and
that problems at individual installations may therefore be overstated.

·The
Armed Services have never assessed the overall impacts of encroachment on
training.

·DOD’s
readiness reports show high levels of training readiness for most units.In those few instances of when units
reported lower training readiness, DOD officials rarely cited lack of adequate
training ranges, areas or airspace as the cause.

·DOD
officials themselves admit that population growth around military installations
is responsible for past and present encroachment problems.

·The
Armed Services’ own readiness data do not show that environmental laws have
significantly affected training readiness.

Ten months after the issuance of the GAO report, DOD still has not produced evidence that environmental
laws are at fault for any of the minor gaps in readiness that may exist.EPA Administrator Whitman confirmed this
much at a recent hearing. At a February 26, 2003, Senate Environment and Public
Works Committee hearing on EPA’s budget, EPA Administrator Whitman stated that
she was “not aware of any particular area where environmental protection
regulations are preventing the desired training.”

To this date, DOD has not provided Congress with the
most basic facts about the impacts of ESA critical habitat requirements on its
readiness activities.Out of DOD’s 25
million acres of training land, how many acres are designated critical
habitat?At which installations?Which species?In what ways have the critical habitat designations limited
readiness activities?What efforts did
DOD make to alert FWS to these problems and to negotiate resolutions?Without answers to these most basic
questions, Congress cannot fairly conclude that the ESA is at fault for any
readiness gaps or that a sweeping ESA exemption is warranted.

3.
DOD has Worked Successfully with the Services to Balance Readiness and Species
Conservation Objectives

The third reason why enacting DOD’s proposed ESA
changes would be a mistake is because the current approach – developing
solutions at the local level, rather than relying on broad, national exemptions
- has worked.My experience at both FWS
and DOD has shown me that solutions developed at the local level are sometimes
difficult to arrive at, but they are almost always more intelligent and
long-lasting than one-size-fits-all solutions developed at the national level.

Allow me to provide a
few brief examples.At the Marine Corps
Base at Camp Lejeune in North Carolina, every colony tree of the endangered
red-cockaded woodpecker is marked on a map, and Marines are trained to operate
their vehicles as if those mapped locations are land mines. Here is the lesson
that Major General David M. Mize, the Commanding General at Camp Lejeune, has
drawn from this experience:

“Returning to the old myth that military training and
conservation are mutually exclusive; this notion has been repeatedly and
demonstrably debunked.In the
overwhelming majority of cases, with a good plan along with common sense and
flexibility, military training and the conservation and recovery of endangered
species can very successfully coexist.”

“Military installations in the southeast are contributing
to red-cockaded woodpecker recovery while sustaining our primary mission of
national military readiness.”

“I can say with confidence that the efforts of our
natural resource managers and the training community have produced an
environment in which endangered species management and military training are no
longer considered mutually exclusive, but are compatible.”

These sentiments, which I share, were relayed by
Major General Mize justeight weeks ago
at a National Defense University symposium sponsored by the U.S. Army Forces
Command (FORSCOM) and others.At that
symposium, representatives of Camp Lejeune Marine Corps Base, Eglin Air Force
Base, Fort Bragg Army Base, Fort Stewart Army Base, Camp Blanding Training
Center in Florida, the U.S. Army Environmental Center, and other Defense
facilities - some of the most heavily utilized training bases in the country -
heralded the success that Defense Department installations have had in
furthering endangered species conservation while maintaining military
readiness.

On theMokapu Peninsula of Marine Corps Base
Hawaii, the growth of non-native
plants, which can decrease the reproductive success of endangered waterbirds,
is controlled through annual “mud-ops” maneuvers by Marine Corps Assault
Vehicles.Just before the onset of
nesting season, these 26 ton vehicles are deployed in plow-like maneuvers that
break the thick mats of invasive plants, improving nesting and feeding
opportunities while also giving drivers valuable practice in unusual terrain.

Attached
to my testimony is a factsheet with additional examples of successful efforts
by DOD installations across the country to balance military readiness and
species conservation.

These success stories highlight a major trend that I
believe has been missed by those promoting the DOD exemptions.In recent years, DOD has increasingly
recognized the importance of sustainability because it meets several importance
objectives at once.Sustainable use of
the land helps DOD achieve not only compliance with environmental laws, but
also long-term military readiness and cost-effectiveness goals.For example, by operating tanks so that they
avoid the threatened desert tortoise, DOD prevents erosion, a problem that is
extremely difficult and costly to remedy.If DOD abandons its commitment to
environmental compliance, it will incur greater long-term costs for
environmental remediation and will sacrifice land health and military
readiness.

A November 2002 policy guidance issued by the
then-Secretary of the Navy to the Chief of Naval Operations and the Commandant
of the Marine Corps suggests that certain members of DOD’s leadership are
indeed willing to abandon the sustainability goal. The policy guidance on its face seems fairly innocuous – it purports to
centralize at the Pentagon all decisionmaking on proposed critical habitat
designations and other ESA actions. However, the Navy Secretary’s cover memo
makes clear that its purpose is also to discourage any negotiation of solutions
to species conservation challenges by Marines or Navy personnel in the field,
lest these locally-developed “win-win” solutions undercut DOD’s arguments on
Capitol Hill that the ESA is broken.According to paragraph 2 of the cover memo, "concessions ... could
run counter to the legislative relief that we are continuing to pursue with
Congress."

Similar sentiments were voiced
by Deputy Defense Secretary Paul Wolfowitz in his March 7, 2003, memo to the
chiefs of the Army, Navy and Air Force.Deputy Secretary Wolfowitz argued that "it is time for us to give
greater consideration to requesting exemptions" from environmental laws
and pleaded for specific examples of instances in which environmental
regulations hamper training.The
implicit message is that efforts at the installation level to resolve conflicts
between conservation and training objectives should be suspended, and that such
conflicts instead should be reported to the Pentagon, where environmental
protections will simply be overridden.

These messages to military
personnel in the field mark a very unfortunate abdication of DOD’s leadership
in wildlife conservation.To maintain
its leadership role as steward of this nation’s endangered wildlife, DOD must
encourage its personnel to continue developing innovative solutions and not
thwart those efforts.

Conclusion

With the Iraq war ongoing and terrorism threats
always present, no one can dismiss the importance of military readiness.However, there is no justification for the Defense
Department to retreat from its environmental stewardship commitments at
home.As base commanders have been
telling us, protecting endangered species and other important natural resources
is compatible with maintaining military readiness.

Surveys show
that the American people today want environmental protection from the federal
government, including the Defense Department, as much as ever.According to an April 2002 Zogby Poll, 85% of registered voters believe that the Defense
Department should be required to follow America's environmental and public
health laws and not be exempt.Americans believe that no one, including the Defense Department,
should be above the law.

Congress should reject the proposed environmental
exemptions in the Administration’s defense authorization package.This proposal, along with the parallel
proposal in the Administration’s FY04 budget request that Congress cut spending
on DOD’s environmental programs by $400 million, are
a step in the wrong direction.

DOD has a long and impressive record of balancing
readiness activities with wildlife conservation. The
high quality of wildlife habitats at many DOD installations provides tangible
evidence of DOD’s positive contribution to the nation’s conservation
goals.At a time when
environmental challenges are growing, DOD should be challenged to move forward
with this successful model and not to sacrifice any of the progress that has
been made.

DOD
HAS A LONG HISTORY OF WORKING SUCCESSFULLY WITH THE ESA

The
Department of Defense (DOD) is again pursuing exemptions from key environmental
laws. A legislative package with these exemptions has been sent to Congress,
which will soon be casting crucial votes. If this legislation is approved it
will greatly reduce DOD’s obligations under the Endangered Species Act (ESA),
Marine Mammal Protection Act, Clean Air Act, Superfund, and Resource
Conservation and Recovery Act.

Last
year, the Administration requested exemptions from six environmental statutes,
and Congress settled on an exemption from the Migratory Bird Treaty Act.

DOD
and ESA Success Stories

DOD has argued, and intends to do
so again, that the ESA is too inflexible and that a sweeping new exemption is
needed.However, this argument is not
based on having encountered insurmountable hurdles complying with the ESA.In fact, the General Accounting Office has
concluded, based on a review of DOD’s own readiness reports, that the military
is at a high state of readiness and that DOD has never demonstrated that the
ESA has significantly impeded training.

Nonetheless, without any public
debate, DOD sought to bypass the ESA’s careful balancing between military
training needs and conservation of imperiled wildlife.The facts show that this would be an
unfortunate and unnecessary departure from DOD’s long history of working
successfully with the ESA.

Marine Corps Air Station Miramar, California

In an effort to protect the
station’s ten endangered species, the U.S. Fish and Wildlife Service (FWS) initially
proposed to designate 65 percent of Miramar’s land area as critical
habitat.FWS later exercised its
discretion under existing law and withdrew this proposed designation after the
Marine Corps established a framework to protect and preserve the station’s
endangered species, guaranteed the plan would be implemented, and defined
measures to judge the plan’s effectiveness.According to DOD, in so doing, “the plan made military readiness
activities and endangered species protection mutually compatible.”

Mokapu Peninsula of Marine Corps Base Hawaii

Among the 50 species of birds
that call this island home are all four of Hawaii’s endangered waterbirds: the
Hawaiian stilt, Hawaiian coot, Hawaiian gallinule, and the Hawaiian duck.Management activities at the base have more
than doubled the number of stilts on the base over the past 20 years.The growth of non-native plants, which can
decrease the waterbirds’ reproductive success, is controlled through annual “mud-ops”
maneuvers by Marine Corps Assault Vehicles (AAVs).Just before the onset of nesting season, these 26 ton vehicles
are deliberately deployed in supervised plow-like maneuvers that break the
thick mats of invasive plants, improving nesting and feeding opportunities
while also giving drivers valuable practice in unusual terrain.

Air Force in Alaska

In 1995 FWS found that the Air
Force’s low-level, high speed training flights in Alaska had the potential to
disturb the three North American subspecies of endangered peregrine
falcons.After the Air Force consulted
with FWS under the ESA, the Air Force agreed to protective “no-fly” zones
around dense peregrine nesting locations.The peregrine falcon has since recovered to the point that it has been
removed from the ESA’s list of threatened and endangered species, and FWS has
declared that “the knowledge gained by Air Force research projects was
important in the recovery process.”

Marine Corps Base Camp Lejeune, North Carolina

Initially 10 percent of this base
was restricted in order to protect the red-cockaded woodpecker, but now only 1
percent of the base is restricted for that purpose, as the number of breeding
pairs of the bird have doubled in the past ten years.The Marines attribute the success of
its conservation efforts to its partnership with FWS, the State of North
Carolina, academic experts, and environmental advocacy groups.

Fort Bragg, North Carolina

Fort Bragg contains important
habitat for the red-cockaded woodpecker, enabling the base to proudly claim
that “this single species has survived because of the havens provided by our
installations’ training land and ranges.”Working with the Nature Conservancy and others, DOD has created buffers
around its installations and training areas, lessening restrictions on training
while enabling the endangered red-cockaded woodpecker to move closer to
recovery.

DOD has successfully worked
with the ESA to achieve its military readiness objectives while conserving
imperiled species.Please ask your
lawmakers to oppose any proposals that exempt DOD from the ESA and other
environmental laws!

FWS Has Repeatedly Granted DOD's Requests
That Its Lands Be Excluded From ESA Critical Habitat Designations

In pushing
for exemptions from Endangered Species Act (ESA) critical habitat protections,
the Department of Defense (DOD) has argued that the ESA lacks sufficient
flexibility to exclude DOD lands from critical habitat designations where
appropriate. However, as shown below, where the U.S. Fish and Wildlife Service
(FWS) has found that DOD's lands are needed for training and listed species are
being adequately conserved, it has repeatedly acceded to DOD's requests that
those be excluded from critical habitat designations. See also NWF Factsheet:
FWS's Case-by-Case Review of INRMPs is Essential for Conserving Imperiled
Wildlife. DOD's effort to replace this flexible, case-by-case review with a
sweeping ESA exemption is completely unwarranted.

The
following FWS statements from the Federal Register show that, time and again,
FWS has used the flexibility of the existing ESA to exclude large swaths of
valuable habitat on DOD lands from critical habitat designations:

“Although
measures to provide for the conservation of Eriodictyon apitatum or Deinandra
increscens ssp. villosa are not currently included in the draft INRMP, the
Air,> Force has committed to incorporate into their INRMP, and implement,
specific measures that will address the conservation of these species and their
habitat where they occur on Vandenberg. Based on this commitment, we have,
therefore, determined that lands on Vandenberg Air Force Base should be
excluded under subsection 4(b)(2) of the Act because the benefits of exclusion
outweigh the benefits inclusion and will not cause the extinction of the
species. For this reason, we are excluding from the designated critical habitat
those proposed units and portions of proposed units that were located on
Vandenberg.”

“We have revised the proposal to eliminate
lands at Camp Roberts under section 3(5)(A), and lands at Ft. Hunter Liggett
under section 4(b)(2). It is our policy that if any areas containing the
primary constituent elements are currently being managed to address the
conservation needs of Chlorogalum purpureum management or protection, these
areas would not meet the definition of critical habitat in section 3(5)(A)(i)
of the Act and would not be included in this final rule. We have determined
that this is the case at CampRoberts due to their having an approved Integrated
Natural Resources Management Plan which addresses the conservation needs of
Chlorogalum purpureum.

We have also
determined that the direct and indirect costs to the Army, including reduction
in military readiness, from designation of critical habitat at Ft. Hunter
Liggett are such that the benefits of excluding those lands exceed the benefits
of their inclusion.

“In their
comments on the proposed rule, the DON requested that the lands of the School
be excluded from the Marina unit of critical habitat because of the protections
and management actions provided for Chorizanthe pungens var. pungens as part of
the INRMP. We evaluated the INRMP and found that it meets the three criteria
described above. We excluded these lands from critical habitat under the
section 3(5)(A) definition.”

[NOTE: This
designation was vacated by a federal court on October 30, 2002, after an
industry group claimed that FWS's economic impact analysis was not sufficently broad.
See Building Ind. Legal Defense Found. V. Norton,, 231 F. Supp. 100 (D.D.C.
2002). The court required FWS to complete a new designation by July 2004.]

“To date,
Miramar is the only DOD installation that has completed a final INRMP that
provides, for sufficient conservation management, and protection for vernal
pools and the., Riverside fairy shrimp. We reviewed this plan and determined
that it addresses and meets the three criteria. Therefore, lands on Miramar
(proposed Critical Habitat Unit 5) do not meet the definition of critical
habitat, and they have not been included in this final designation of critical
habitat for the Riverside fairy shrimp.”

“To date, as
the INRMP for Camp Pendleton has not yet been completed and approved, these
lands meet the definition of critical habitat. Nevertheless, we have determined
that it is appropriate to exclude training areas on Camp Pendleton from this
critical habitat designation under section 4(b)(2). The main benefit of this
exclusion is ensuring that the mission-critical military training activities
can continue without interruption at Camp Pendleton while the INRMP is being
completed.”

“The
proposed critical habitat designation included about 2,295 ha (5,670 ac), or
about 10 percent of the base. This exclusion does not apply to the vernal pool
complexes in the Wire Mountain Housing Area, within the Cockleburr Sensitive
Area, and lands leased to the State of California and included within San
Onofre State Park. Because these lands are used minimally, if at all, by the
Marines for training, the 312 ha (770 ac) of lands proposed on Camp Pendleton
and within the San Onofre State Park are retained in the final designation.”

California
Red-legged Frog 66 FR 14626-01 (March 13, 2001)

“During the
comment period for the proposed determination of critical habitat for the
California red-legged frog, we received and subsequently evaluated a final
INRMP for Vandenberg Air Force Base found in Units 23, 24, and 26. This plan
addresses the California red-legged frog as a covered species and provides
conservation measures for the species. Based on this plan and Vandenberg's
section 7 consultation history, we have determined that the conservation
measures afforded the subspecies are sufficient to assure its conservation on the
base. Therefore, we have excluded Vandenberg Air Force Base from the final
determination of critical habitat for the red-legged frog resulting in a
reduction of approximately 38,445 ha (95,000 ac) from these units.”

“We also
received and evaluated a request from Camp Parks Reserve Forces Training Area
found in Unit 15 and Camp San Luis Obispo found in Unit 21, for exclusion from
final designation because of the impact a final designation would have on their
training­critical mission. The proposed designation included about 90 percent
of both installations. After evaluation of the benefits of inclusion and the
benefits of exclusion, we have excluded Camp Parks resulting in a reduction of
approximately 857 ha (2,118 ac) in Unit 15 and CSLO resulting in a reduction of
approximately 2,272 ha (5,613 ac) in Unit 21 from this final designation.”

Arroyo Toad
66 FR 9414-01 (February 7, 2001)

[NOTE: This
designation was vacated by a federal court on October 30, 2002, after an
industry group claimed that the economic impact analysis was not sufficiently
broad. See Building Ind. Legal Defense Found. V. Norton, 231 F. Supp. 100
(D.D.C. 2002). The court required FWS to complete a new designation by July
2004.]

“Arroyo toad
numbers on Camp Pendleton are significant and are inclusive of the few
remaining populations along the coastal plain.”

“[W]e have
determined that it is appropriate to exclude Camp Pendleton from this critical
habitat designation under section 4(b)(2). The main benefit of this exclusion
is ensuring that the mission-critical military training activities can continue
without interruption at ,Camp Pendleton while the INRMP and programmatic
uplands consultation are being completed. This exclusion does not include that
part of Camp Pendleton leased to the State of California and included within
San Onofre State Park (including San Mateo Park) and those agricultural leased
lands adjacent to San Mateo Creek. Because these lands are used minimally, if
at all, by the Marines for training, the lands proposed within the state park
and agricultural leases are retained in the final designation.”

“Fort Hunter Liggett seemed most concerned in
their comments about the inclusion of what they termed “marginal and
unsuitable” habitat and the resulting consultation requirements, and the
perceived need to reinitiate consultation on certain actions. We believe we
have adequately addressed much of their concern by eliminating the northernmost
reach of the river that was proposed, and by the reduction in grid cell size to
eliminate such marginal habitat (see Changes from the Proposal section).”

“A primary
concern expressed by Fallbrook Naval Weapons Station is that the designation of
critical habitat within certain developed areas will impose additional
restrictions on their operations. However, existing structures, ordnance
storage magazines and bunkers, and other developed areas do not provide the
primary constituent elements necessary for the arroyo toad and thus by
definition are not critical habitat.”

Mexican
Spotted Owl 66 FR 8530-01 (February 1, 2001)

[NOTE: In Center for Biological Diversity v.
Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), the court overturned the critical
habitat designation for the Mexican spotted owl on the ground that that U.S.
Forest Service lands could not legitimately be excluded from a critical habitat
designation on the basis of the “special management” language in ESA §3(5).
However, the court upheld FWS's exclusion of tribal lands as within FWS's broad
authority under ESA §4(b)(2). Thus, the ruling does not remove FWS's
flexibility to exclude DOD lands from a critical habitat designation on the
basis of a satisfactory INRMP and the benefits to military training that the
exclusion would provide. See NWF Factsheet: DOD's Argument for an ESA Exemption
is Based Upon a Misstatement of the Law.]

“Fort
Carson, Colorado, provided information during the comment period that indicated
the Mexican spotted owl is not known to nest on the military installation and
the species is a rare winter visitor. Protected and restricted habitat is also
not known to exist on Fort Carson. Further, Fort Carson is updating the
Integrated Natural Resources Management Plan (INRMP) to include specific
guidelines and protection measures that have been recently identified through
informal consultation with us. The INRMP will include measures to provide
year-round containment and suppression of wildland fire and the establishment
of a protective buffer zone around each roost tree. The target date of
completion for this revision is early 2001. Fort Carson, through consultation
with us, indicated they will ensure that the INRMP will meet the criteria for
exclusion. They also provided additional information and support to indicate
that no protected or restricted habitat exists on the base, and asked to be
excluded from the final designation. We agree that Fort Carson should be
excluded from the final designation.”

Coastal
California Gnatcatcher 65 FR 63680-01 (October 24, 2000)

“To date,
Marine Corps Air Base Miramar is the only DOD installation that has completed a
final INRMP that provides for sufficient conservation management and protection
for the gnatcatcher. We have reviewed this plan and have determined that it
addresses and meets the three criteria. Therefore, lands on Marine Corps Air
Base Miramar do not meet the definition of critical habitat and have been
excluded from the final designation of critical habitat for the gnatcatcher.”

California
Red-legged Frog 66 FR 14626-01 (March 13, 2001)

“During the comment period for the proposed
determination of critical habitat for the California red-legged frog, we
received and subsequently evaluated a final INRMP for Vandenberg Air Force Base
found in Units 23, 24, and 26. This plan addresses the California red-legged
frog as a covered species and provides conservation measures for the species.
Based on this plan and Vandenberg's section 7 consultation history, we have
determined that the conservation measures afforded the subspecies are
sufficient to assure its conservation on the base. Therefore, we have excluded
Vandenberg Air Force Base from the final determination of critical habitat for
the red-legged frog resulting in a reduction of approximately 38,445 ha (95,000
ac) from these units.”

“We also
received and evaluated a request from Camp Parks Reserve Forces Training Area
found in Unit 15 and Camp San Luis Obispo found in Unit 21, for exclusion from
final designation because of the impact a final designation would have on their
training­critical mission. The proposed designation included about 90 percent
of both installations. After evaluation of the benefits of inclusion and the
benefits of exclusion, we have excluded Camp Parks resulting in a reduction of
approximately 857 ha (2,118 ac) in Unit 15 and CSLO resulting in a reduction of
approximately 2,272 ha (5,613 ac) in Unit 21 from this final designation.”

Arroyo Toad
66 FR 9414-01 (February 7, 2001)

[NOTE: This
designation was vacated by a federal court on October 30, 2002, after an
industry group claimed that the economic impact analysis was not sufficiently
broad. See Building Ind. Legal Defense Found. V. Norton, 231 F. Supp. 100
(D.D.C. 2002). The court required FWS to complete a new designation by July
2004.)

“Arroyo toad
numbers on Camp Pendleton are significant and are inclusive of the few
remaining populations along the coastal plain.”

“[W]e have
determined that it is appropriate to exclude Camp Pendleton from this critical
habitat designation under section 4(b)(2). The main benefit of this exclusion is
ensuring that the mission-critical military training activities can continue
without interruption at Camp Pendleton while the INRMP and programmatic uplands
consultation are being completed. This exclusion does not include that part of
Camp Pendleton leased to the State of California and included within San Onofre
State Park (including San Mateo Park) and those agricultural leased lands
adjacent to San Mateo Creek. Because these lands are used minimally, if at all,
by the Marines for training, the lands proposed within the state park and
agricultural leases are retained in the final designation.”

“Fort Hunter
Liggett seemed most concerned in their comments about the inclusion of what
they termed “marginal and unsuitable” habitat and the resulting consultation
requirements, and the perceived need to reinitiate consultation on certain
actions. We

In contrast
to Marine Corps Air Base Miramar, other military installations within the area
proposed as critical habitat for the gnatcatcher have not yet completed their
INRMPs. Most notably, Marine Corps Base Camp Pendleton (Camp Pendleton)
represents one of the largest contiguous blocks of coastal sage scrub in
southern California. The base provides habitat for numerous core populations of
gnatcatchers and essential habitat linkages between core populations in
northern San Diego County to those in southern Orange and southwestern
Riverside Counties. In light of these factors, we proposed 20,613 ha (50,935
ac) of the approximately 50,000 ha (125,000 acre) base as critical habitat for
the gnatcatcher.”

“During both
public comment periods for the proposal, the Marines concluded that the
designation, if it-were to become final, would cripple their ability to conduct
their critical training activities. They asserted that “this overwhelming
proposal [if made final] will have a long term, cumulative and detrimental
impact on [their] mission.” The proposed critical habitat encompassed more than
40 percent of the Base. Out of the 46 training or joint use areas on Camp Pendleton,
the proposal included all of 22 and portions of 9 such areas, which were
concentrated on the coastal portion of the Base. In addition, the proposal
included three of four principal landing beaches and the key inland training
areas adjacent to these beaches where Marines train in amphibious warfare,
large and small tactics, and warfighting skills. Camp Pendleton is the Marine
Corps' only amphibious training base on the Pacific coast.”

“Today, as the
INRMP has not yet been completed and approved, these lands on the base meet the
definition of critical habitat. Nevertheless, we have determined that it is
appropriate to exclude Camp Pendleton from this critical habitat designation
under section 4(b)(2). The main benefit of this exclusion is ensuring that the
mission-critical military training activities can continue without interruption
at Camp Pendleton while the INRMP is being completed.”

“In
particular, the Marines implement a set of “programmatic instructions” that
create 500-foot buffers around each 1998 gnatcatcher observation. These avoided
areas, after eliminating overlapping buffers and off-Base areas, total about
3,343 ha (8,260 ac), or a little less than 7 percent of the entire area of Camp
Pendleton. Although avoiding these areas constrains Marine training activities
to some degree, the effectiveness of their overall mission is not compromised.
The proposed critical habitat designation, however, included about 20,613 ha
(50,935 ac), or, to reiterate, about 40 percent of the Base. If this area is
included in the final designation of critical habitat for the gnatcatcher, the
Marines would be compelled by their interpretation of the Endangered Species
Act to significantly curtail necessary training within the area designated as
critical habitat, to the detriment of mission-critical training capability,
until the consultation is concluded, up to a year from now. As a result, this
increase in the extent of avoided areas would greatly restrict use of the Base,
severely limiting the Base's utility as a Marine training site.”

“This
exclusion does not include that part of Camp Pendleton leased to the State of
California and included within San Onofre State Park (including San Mateo
Park).

Because these
lands are used minimally, if at all, by the Marines for training, the 1,195 ha
(2,960 ac) of lands proposed within the state park are retained in the final
designation. These lands do not include lands leased for agricultural
purposes.”

San Diego
Fairy Shrimp 65 FR 63438-01 (October 23, 2000)

“We
evaluated Department of Defense (DOD) Integrated Natural Resource Management
Plans (INRMPs) for DOD land that was within the proposed critical habitat to
determine whether any INRMPs met the special management criteria. To date,
Marine Corps Air Base, Miramar is the only DOD installation that has completed
a final INRMP that provides for sufficient conservation management and
protection for the San Diego fairy shrimp. We reviewed this plan and determined
that it addresses and meets the three criteria. Therefore, lands on Marine
Corps Air Base, Miramar no longer meet the definition of critical habitat, and
they have been excluded from the final designation of critical habitat for the
San Diego fairy shrimp.”

“In contrast
to Marine Corps Air Base Miramar, Marine Corps Base Camp Pendleton (Camp
Pendleton) has not yet completed their INRMP. Camp Pendleton has several
substantial vernal pool complexes that support the San Diego fairy shrimp. In
light of these factors, we proposed 4,902 ha (12,114 ac) of the approximately
50,000 ha (125,000 acre), base as critical habitat for the San Diego fairy
shrimp. Out of the 46 training or joint use areas on Camp Pendleton, the
proposal included all of five such areas, which were concentrated on the
coastal portion of the Base. In addition, the proposal included habitat found
elsewhere on the base.”

“Today, as
the INRMP has not yet been completed and approved, these lands on the base meet
the definition of critical habitat. Nevertheless, we have determined that it is
appropriate to exclude Camp Pendleton from this critical habitat designation
under section 4(b)(2). The main benefit of this exclusion is ensuring that the
mission-critical military training activities can continue without interruption
at Camp Pendleton while the INRMP is being completed.”

The Defense
Department has requested an exemption from the Endangered Species Act (ESA) on
the ground that the Integrated Natural Resources Management Plans (INRMPs) it
prepares under the Sikes Act are an adequate substitute for ESA critical
habitat protection.

However, the
U.S Fish and Wildlife Service (FWS) has reviewed a number of INRMPs in the past
few years for the very purpose of determining their adequacy as substitutes for
critical habitat protection. As shown in the table below, on repeated
occasions, FWS has determined that INRMPs were inadequate to conserve listed
species.

U.S. Fish
and Wildlife Service's Findings Regarding Inadequacy of INRMPs

DOD
Installation

Endangered
and Threatened

FWS Findings

Species
Habitat at Installation

Pacific
Missile Range, Navy's Barking Sands Facility, Kauai

Plants:
Panicum niihauense no common name)

“Management
at the PRMF Barking Sands Facility lands currently consists of restricting
human access and off-road vehicles from the dune ecosystems and mowing
landscaped areas. These actions alone are not sufficient to address the factors
inhibiting the long-term conservation of Panicum niihauense. Therefore, we
cannot at this time find that management, on these lands under Federal
jurisdiction as sufficient to find that they no longer meet the definition of
critical habitat.” 68 FR 9116 (February 27, 2003).

Santa Cruz
Armory, California

Plants:Santa
Cruz tarplant Holocarpha macradenia)

“We conclude
that [the California Army National Guard] does not yet have an INRMP for the Santa
Cruz Armory that sufficiently addresses the criteria above. These lands do not
warrant exclusion from critical habitat designation because the proposed
management plan has not been approved and does not contain assurances that the
management actions it describes will be implemented or effective.” 67 FR 63968
(October 16, 2002).

“Management at
the Barking Sands and Makaha Ridge Facility lands currently consists of
restricting human access and mowing landscaped areas. These actions alone are
not sufficient to address the factors inhibiting the long-term conservation of
[plants] Panicum niihauense and Wilkesia hobdyi. Therefore, we can not at this
time find that management on these lands under Federal jurisdiction is adequate
to preclude a proposed designation of critical habitat.” 67 Fed. Reg. 3940,
3998 (Jan. 8, 2002).

Army's
Dillingham Military Reservation, Oahu

Plants:

Cyperus trachysanthos (pu'uka'a)

Hibiscus
brackenridgei ssp. mokuleianus (ma'o hau hele)

Nototrichium
humile (kulu'i) Schiedea kealiae (no common name)

“We believe
this land is needed for the recovery of one or more of these four [plant]
species. Currently, the Army is not implementing any management actions for
these listed species at the Dillingham Military Reservation (HINHP Database
2001; Army 2001b). In addition, proposed management actions identified for [the
plant] Schiedea kealiae in the 2001 INRMP are `subject to available funding'.
We do not believe that appropriate conservation management strategies have been
adequately funded or effectively implemented. Therefore, we cannot at this time
find that management of this land under Federal jurisdiction is adequate to
preclude a proposed designation of critical habitat.” 67 Fed. Reg. 37108, 37161
(May 28, 2002).

Hesperomannia
arborescens (no common name) Phyllostegia hirsuta (no common name)
Tetraplasandra gymnocarpa (' ohe' ohe) “Proposed management actions identified
for listed plant species in the 2001 INRMP are `subject to available funding'.
We do not believe that there are sufficient assurances that appropriate
conservation management strategies will be adequately funded or effectively
implemented. Therefore, we cannot at this time find that management of this
land under Federal jurisdiction is adequate to preclude a proposed designation
of critical habitat.” 67 Fed. Reg. 37108, 37161-37162 (May 28, 2002).

“Proposed
management actions identified for listed plant species in the 2001 INRMP are `subject
to available funding'. We do not believe that the current management measures
are sufficient to address the primary threats to these species, nor do we
believe that there are appropriate assurances that appropriate conservation
management strategies will be adequately funded or effectively implemented.
Therefore, we cannot at this time find that management of this land under
Federal jurisdiction is adequate to preclude a proposed designation of critical
habitat.” 67 Fed. Reg. 37108, 37192 (May 28, 2002).

“While we
believe that some of these [plant] species specific actions may control threats
in the short term, we do not believe that these measures are sufficient to
address the primary threats to all of the species reported from Makua Military
Reservation at this time... However, we cannot at this time find that
management of this land under Federal jurisdiction is adequate to preclude a
proposed designation of critical habitat.” 67 Fed. Reg. 37108, 37162­37163 (May
28, 2002).

Army's Makua
Military Reservation, Oahu (continued)

Bird:
Chasiempis sandwichensis ibidis (O'ahu 'elepaio)

“To date, no
military installation on O'ahu has completed a final INRMP that provides
sufficient management and protection for the elepaio.” 66 Fed. Reg. 63752,
63762 (Dec. 10, 2001).

“We have determined that current management
[at Makua Military Reservation] does not adequately address the conservation
needs of the Oahu elepaio....” 66 Fed. Reg, at 63768.

“Proposed'
management actions identified for listed plant species in 2001 INRMP are
`subject to available funding'. We do not believe that the current management
measures are sufficient to address the primary threats to these species, nor do
we believe that there are sufficient assurances that appropriate conservation
management strategies will be adequately funded or effectively implemented.
Therefore, we cannot at this time find that management of this land under
Federal jurisdiction is adequate to preclude a proposed designation of critical
habitat “ 67 Fed. Reg. 37108, 37163 (May 28, 2002).

Army's
Schofield Barracks East Range, Oahu (continued)

Bird:
Chasiempis sandwichensis ibidis (O'ahu 'elepaio)

“To date, no
military installation on Oahu has completed a final INRMP that provides
sufficient management and protection for the elepaio.” 66 Fed. Reg. 63752,
63762 (Dec. 10, 2001).

“We have
determined that current management [ at Schofield Barracks] does not adequately
address the conservation needs of the Oahu elepaio....” 66 Fed. Reg. at 63768.

“Proposed management actions identified
for listed plant species in the 2001 INRMP are `subject to available funding'.
We do not believe that the current management measures are sufficient to
address the primary threats to these species, nor do we believe that there are
sufficient assurances that appropriate conservation management strategies will
be adequately funded or effectively.implemented. Therefore, we cannot at this
time find that management of this land under Federal jurisdiction is adequate
to preclude a proposed designation of critical habitat.” 67 Fed. Reg. 37108,
37163 (May 28, 2002).

Army's
Schofield Barracks Military Reservation, Oahu (continued)

Bird:
Chasiempis sandwichensis ibidis (O' ahu 'elepaio)

“To date, no
military installation on O'ahu has completed a final INRMP that provides
sufficient management and protection for the elepaio.” 66 Fed. Reg. 63752,
63762 (Dec. 10, 2001).

“[T]he
threat to elepaio at Schofield Barracks of wildfires resulting from training
activities has not been managed adequately. Larger scale rodent control and
improved fire management will be necessary to meet the long-term conservation
needs of the elepaio. We have determined that current management does not
adequately address the conservation needs of the Oahu elepaio....” 66 Fed.
Reg.at 63768.

Naval Computer
and Telecommunications Area Master Station Pacific Radio Transmitting Facility
at Lualualei, Oahu

Plant: Marsilea villosa (' ihi' ihi)

“One [plant]
species, Marsilea villosa, occurs on land at the Naval Computer and
Telecommunications Area Master Station Pacific Radio Transmitting Facility at
Lualualei and we believe this land is needed for the recovery of this species.
Some management actions to protect and maintain the population are included in
the 2001 INRMP but these actions have not been adequately funded or effectively
implemented (HINHP Database 2001; Navy 200la). Therefore, we cannot at this
time find that management of this land under Federal jurisdiction is adequate
to preclude a proposed designation of critical habitat.” 67 Fed. Reg. 37108,
37164 (May 28, 2002).

“We do not
believe that these measures are sufficient to address the primary threats to
these species on this land, nor do we believe that appropriate conservation
management strategies have been adequately funded or effectively implemented.
Therefore, we cannot at this time find that management of this land under
Federal jurisdiction is adequate to preclude a proposed designation of critical
habitat.” 67 Fed. Reg. 37108, 37164 (May 28, 2002).

Bird:
Chasiempis sandwichensis ibidis (Oaahu 'elepaio)

“The primary
threats to the elepaio, predation by alien rats and diseases carried by alien
mosquitoes, have not been addressed on Navy lands.... After reviewing the draft
INRMP for NAVMAG Pearl Harbor Lualualei Branch, we have determined that it does
not provide for adequate protection or management for the Oahu elepaio. The
draft INRMP does not include a management strategy for the Oahu elepaio and
does not provide an evaluation of population distribution, quality and quantity
of nesting habitat, threats, and management needs for recovery.” 66 Fed. Reg.
63752, 63767 (Dec. 10, 2001).

Army's Fort
Shafter, H'ahu

Bird:
Chasiempis sandwichensis ibidis (O'ahu 'elepaio)

“To date, no military installation on Oahu
has completed a final INRMP that provides sufficient management and protection
for the etepaio.” 66 Fed. Reg. 63752, 63762 (Dec. 10, 2001).

“However,
current management is not sufficient to address many of the factors inhibiting the
long-term conservation of any of these ten [plant] species and thus provide
conservation benefits to the species. In addition there is no guarantee of
long-term funding for on-going or future management actions.... Therefore, we
can not at this time find that management on this land under Federal
jurisdiction is adequate to preclude a proposed designation of critical
habitat.” 67 Fed. Reg. 36968, 37002 (May 28, 2002).

DOD HAS USED
MISLEADING ANECDOTES TO JUSTIFY ITS PROPOSAL TO EXEMPT ITSELF FROM THE ESA'S
CRITICAL HABITAT PROTECTIONS

The
Department of Defense (DOD) is again pursuing exemptions from key environmental
laws. A legislative package with these exemptions has been sent to Congress,
which will soon be casting crucial votes. If this legislation is approved it
will greatly reduce DOD's obligations under the Endangered Species Act (ESA),
Marine Mammal Protection Act, Clean Air Act, Superfund, and Resource
Conservation and Recovery Act.

The DOD is
requesting these exemptions even though the General Accounting Office
concluded, based on a review of DOD's own readiness reports, that the-military
is at a high state of readiness and that DOD has never demonstrated that
adhering to: environmental laws has significantly impeded training.

What
justification has DOD offered sweeping exemptions from the ESA? It turns out
that the only evidence by DOD has consisted of highly misleading anecdotes.

The ESA's
Critical Habitat Protections Have Not Significantly Impeded Training

An analysis
of DOD's ESA anecdotes shows that sweeping exemptions from the ESA, are
unwarranted -- DOD has been able to carry out its training mission while
complying with the ESA. Due to successful negotiations, DOD frequently
persuaded the U.S. Fish and Wildlife Service (FWS) to exclude DOD lands from
critical habitat designations. In the rare cases where critical habitat has
been designated, DOD has never identified an obstacle to achieving readiness.
DOD has never found it necessary to utilize the “national security” exemption
procedure provided by the ESA.

THE REST OF
THE STORY; Such proposals were rejected two years ago by the FWS in its final
rules, which excluded all but 875 acres of Camp Pendleton's approximately
120,000 acres of training land from its final critical habitat designations.
Camp Pendleton encompasses 125,118 acres, roughly 5,000 acres of which are
leased for various non-military purposes, such as California's San Onofre State
Park and agricultural operations. FWS's critical habitat designations have been
focused almost entirely on these non-training lands.

The
following list provides the number of acres originally proposed and actually
designated for each of the five species with proposed critical habitat
designations at Camp Pendleton. Some of these species share the same habitats,
so acreage totals should not be combined to derive otal acres designated as
critical habitat.

San Diego
Fairy Shrimp Critical Habitat:

12,829 acres
were proposed but only 40 acres were designated. The entire 40 acres designated
are within San Onofre State Park and are not used for training.

Coastal
California Gnatcatcher Critical Habitat:

50,992 acres
were proposed but only 3,773 acres were designated. None of the 3,773 acres designated
are used for training: 2,960 acres are within San Onofre State Park and the
remainder are leased for agricultural purposes.

Tidewater
Goby Critical Habitat:

731 acres
were proposed but 959 acres were designated. Less than 875 acres of designated
lands are potential training lands; the remaining 84 acres are within San
Onofre State Park. Camp Pendleton has the only remaining population of this
endangered fish `in the region.

Riverside
Fairy Shrimp Critical Habitat:

5,567 acres
were proposed but only 770, acres were designated. All of the 770 acres
designated are in San Onofre State Park or otherwise in leased areas that,
according to FWS, are “used minimally, if at all, by the Marines for training.”
As a result of a building industry lawsuit,-this designation has now been
vacated and a more extensive, economic impact analysis is now being prepared.

Arroyo Toad
Critical Habitat:

38,210 acres
were proposed but only 2,680 acres were designated. According to FWS, all of
these designated acres are either in San Onofre State Park or on agricultural
leased lands that are “used minimally, if at all, by the Marines
for-”training.” As a result of a building industry lawsuit, this designation
has now been vacated and a more extensive economic impact analysis is being
prepared. In summary, despite the presence of 18 threatened and endangered
species on Camp Pendleton, less than one percent of the training lands on the
base - not the reported 57 percent - is designated as critical habitat for any
species.

DOD
ASSERTION: “At Camp Pendleton, proposed critical habitat under the Endangered
Species Act would cover 57% of the base, including all 17 miles of the beach
that is critical to training operations. ...” (Congressional Testimony of
Raymond F. DuBois, Jr., Deputy Undersecretary of Defense, March 13, 2003.
Emphasis added.)

THE REST OF
THE STORY: The biggest limitation on training is not critical habitat
designation but the presence of Interstate 5, a railroad, the San Onofre
Nuclear Generation Plant, and other topographic access limitations. The ESA
only limits large­unit amphibious landings on two to three miles, of the
17-mile beach and only during the five- to six-month nesting seasons of the
endangered Western snowy plover and California least tern.

DOD essentially concedes that the training
restrictions to protect the Western snowy plover and California least tern are
not a significance to training. Camp Pendleton's successful efforts to protect
the snowy plover were recently celebrated in DOD's “We're Saving a Few Good
Species” poster campaign, with DOD declaring that “an elite military force can
train in environmentally sensitive areas and protect a threatened species at
the same time.” The exemption from the ESA's critical habitat provisions proposed
by DOD. would not even affect the restrictions related to the snowy plover and
the least tern – those restrictions are in place pursuant to the ESA's jeopardy
and take. prohibitions. Neither species has designated critical habitat on Camp
Pendleton.

DOD ASSERTION:
The proposed amendment is narrowly tailored and will only apply to portions of
Camp Pendleton and other military bases needed for training.

THE REST OF
THE STORY: The amendment would apply to land owned by the military even if used
for non-military purposes. In the case of Camp Pendleton, the amendment would
apply to San Onofre State Park, which is leased to the State of California by
the Marine Corps. San Onofre is the 10th most popular park in California and
currently is home to several endangered and threatened species and their
designated critical habitat. However, because the Park is “owned” by the
Department, the amendment would preclude any designation of critical habitat on
park property.

Naval Base
at Coronado, California

DOD
ASSERTION: “When Navy SEALs land on beaches at Naval Base Coronado during
nesting season, they have to disrupt their tactical formation to move in narrow
lanes marked by green tape, to avoid disturbing the nests of the Western snowy
plover and California least tern. “

THE REST OF THE STORY: Of the base's
5,000-yard ocean coastline, the presence of these two endangered birds only
restricts the use of one, 500-yard training lane and the restriction is only in
place for the birds' five- to six-month nesting season. And, as the Navy
acknowledges, this nest-marking “work around” has been important to species
recovery.

San Clemente
Island, California

DOD
ASSERTION: The presence of the endangered loggerhead shrike shorebird has curtailed
“the use of illumination rounds or other potentially incendiary shells during
shore bombardment exercises at San Clemente during the six-month loggerhead
shrike breeding season. “

THE REST OF THE STORY: The,loggerhead shrike
first became imperiled on the island due to the Navy's introduction of a goat
that decimated the bird's habitat. As a result of conservation efforts on the
island, the shrike's population, once as low was 13 birds, now consists of 106
birds.

The use of live ordinance is restricted from
June to October (not during the February­June breeding season) because of the
risk of fire, but this could be remedied by the use of inert ordinance. The
sole reason provided by the Marine Corps for its failure to use inert ordinance
is that its inventory of this kind of ordinance is limited.

Vieques
Island Naval Range, Puerto Rico

DOD
ASSERTION: ESA protections for the endangered hawksbill and leatherback sea
turtles have restricted training at this range, including the: possibility -of
“halting the entire training exercise for a Carrier Battle Group' in the event
of observing a single sea turtle. “

THE REST OF THE STORY As a result of formal
consultation under the ESA, the Navy agreed to institute precautionary
conservation measures. In response, FWS issued a no jeopardy Biological Opinion
allowing battle group exercises to go forward without fear of delay due to the
ESA. The Navy's conservation measures, such as the relocation of turtle eggs to
a hatchery during amphibious landings, have resulted in the successful hatching
of over 17,000 hawksbill and leatherback sea turtle eggs.

Barry M.
Goldwater Air Force Range, Arizona

DOD
ASSERTION: “In the calendar year 2000, almost 40 percent of the live fire
missions at the Goldwater Range were canceled.”

THE REST OF
THE STORY: This base is home to the last remaining Sonoran pronghorn in the
United States - with just 99 animals left, it is one of the most endangered
species of large mammals in the world. The pronghorn's continued existence is
threatened by air and ground maneuvers, including bombing, strafing, artillery
fire and low-level flights. Despite this fact, DOD's proposed legislation would
not address the situation at Goldwater, as FWS has not designated any of the
range as critical habitat for the pronghorn out of fear that doing so “could
seriously limit the Air Force's ability to modify missions on its lands.” In
return, the Air Force is participating in a regional ecological study with the
Department of the Interior, the Nature Conservancy, and the Sonoran Institute
as a starting point for their conservation efforts.

Fort Hood,
Texas

DOD ASSERTION: “Only about 17% of Fort Hood
lands are available for training without restriction. “

THE REST OF
THE STORY: Endangered species conservation measures are singled out for blame
in the limitation of training exercises at Fort Hood, yet over 74 percent of
the base's 217,600 acres are currently restricted in order to accommodate
large-scale cattle operations. Conversely, less than 34 percent of Fort Hood's
training land has faced limited restrictions because of the presence of two
endangered birds, the black capped , vireo and the golden cheeked warbler. Even
on these restricted lands, however, many training activities are still allowed.
In certain “core areas” within the endangered birds' habitat, the use of
chemical grenades, artillery firing and digging are limited.

DOD has
successfully worked with the ESA to achieve its military readiness objectives
while conserving imperiled species. Please ask your lawmakers to oppose any
proposals providing exemptions from the Endangered Species Act and other
environmental laws!

The
Department of Defense (DOD) is again pursuing exemptions from key environmental
laws. A legislative package with these exemptions has been sent to Congress,
which will soon be casting crucial votes. If this legislation is approved it
will greatly reduce DOD's obligations under the Endangered Species Act (ESA),
Marine Mammgl Protection Act, Clean Air Act, Superfund, and Resource
Conservation and Recovery Act.

Last year,
the Administration requested exemptions from six environmental statutes, and
Congress settled on an exemption from the Migratory Bird Treaty Act.

DOD and ESA
Success Stories

DOD has
argued, and intends to do so again, that the ESA is too inflexible and that a
sweeping new exemption is needed. However, this argument is not based on having
encountered insurmountable hurdles complying with the ESA. In fact, the General
Accounting Office has concluded, based on a review of DOD's own readiness
reports, that the military is at a high state of readiness and that DOD has
never demonstrated that the ESA has significantly impeded training.

Nonetheless,
without any public debate, DOD sought to bypass the ESA's careful balancing
between military training needs and conservation of imperiled wildlife. The
facts show that this would be an unfortunate and unnecessary departure from DOD's
long history of working successfully with the ESA.

Marine Corps Air Station Miramar, California

In an effort to protect the station's ten
endangered species, the U.S. Fish and Wildlife Service (FWS) initially proposed
to designate 65 percent of Miramar's land area as critical habitat. FWS later
exercised its discretion under existing law and withdrew this proposed
designation after the Marine Corps established a framework to protect and
preserve the station's endangered species, guaranteed the plan would be
implemented, and defined measures to judge the plan's effectiveness. According
to DOD, in so doing, “the plan made military readiness activities and
endangered species protection mutually compatible.”

Mokapu
Peninsula of Marine Corps Base Hawaii

Among the 50 species of birds that call this
island home are all four of Hawaii's endangered waterbirds: the Hawaiian stilt,
Hawaiian coot, Hawaiian gallinule, and the Hawaiian duck. Management activities
at the base have more than doubled the number of stilts on the base over the
past 20 years. The growth of non-native plants, which can decrease the
waterbirds' reproductive success, is controlled through annual “mud-ops”
maneuvers by Marine Corps Assault Vehicles (AAVs). Just before the onset of
nesting season, these 26 ton vehicles are deliberately deployed in supervised
plow-like maneuvers that break the thick mats of invasive plants, improving
nesting and feeding opportunities while also giving drivers valuable practice
in unusual terrain.

Air Force in
Alaska

In 1995 FWS
found that the Air Force's low-level, high speed training flights in Alaska had
the potential to disturb the three North American subspecies of endangered
peregrine falcons. After the Air. Force consulted with FWS under the ESA, the Air
Force agreed to protective “no-fly” zones around dense peregrine nesting
locations. The peregrine falcon has since recovered to the point that it has
been removed from the ESA's list of threatened and endangered species, and FWS
has declared that “the knowledge gained by Air Force research projects was
important in the recovery process.”

Marine Corps
Base Camp Lejeune, North Carolina

Initially 10
percent of this base was restricted in order to protect the red-cockaded
woodpecker, but now only 1 percent of the base is restricted for that purpose,:
as the number of breeding pairs of the bird have doubled in the past ten years.
The Marines attribute the success of its conservation efforts to its
partnership with FWS, the State of North Carolina, academic experts, and
environmental advocacy groups.

Fort Bragg,
North Carolina

Fort Bragg
contains important habitat for the red-cockaded woodpecker, enabling the base
to proudly claim that “this single species has survived because of the havens provided
by our installations' training land and ranges.” Working with the Nature
Conservancy and others, DOD has created buffers around its installations and
training areas, lessening restrictions on training while enabling the
endangered red-cockaded woodpecker to move closer to recovery.

DOD has successfully worked with the ESA to
achieve its military readiness objectives while conserving imperiled species.
Please ask your lawmakers to oppose any proposals that exempt DOD from the ESA
and other environmental laws!

Jamie
Rappaport Clark is Senior Vice President for Conservation Programs at the
National Wildlife Federation, one of the nation's leading conservation
education and advocacy organizations. In that position she directs conservation
advocacy programs emanating from the organization's headquarters in Reston,
Virginia, the Congressional and Federal Affairs Office and International
Affairs Office in Washington, D.C., and 9 field offices, which are implemented
in partnership with NWF's 46 state affiliate organizations and grassroots
volunteers nationwide.

Before
assuming NWF's lead conservation post in May, 2001, Clark was Director of the
U.S. Fish and Wildlife Service (FWS) from 1997-2001. As head of the principal
federal agency responsible for conserving, protecting, and enhancing fish,
wildlife, plants, and their habitats, she oversaw the management of more than
530 national wildlife refuges and 66 national fish hatcheries. She also
directed the administration and enforcement of the Endangered Species Act,
Migratory Bird Treaty Act and other wildlife laws.

Some of the
major conservation successes achieved during Clark's lengthy tenure with the
FWS include the spectacular recovery of the gray wolf, bald eagle, and
peregrine falcon; and the passage of the National Wildlife Refuge System
Improvement Act, which ensures that activities on refuges are consistent with
sound wildlife conservation principles.

Before
joining the FWS, Clark was Fish and Wildlife Administrator for the Department
of the Army; Natural/Cultural Resources Program Manager for the National Guard
Bureau; Research Biologist, U.S. Army Medical Research Institute; and Wildlife
Biologist, National Institute for Urban Wildlife.

Clark holds a M.S. in Wildlife Ecology from
the University of Maryland. She received a B.S. in Wildlife Biology degree from
Towson State University in Towson, Maryland, where she also did post-graduate
work in environmental planning.

Clark lives with her husband, Jim and son,
Carson (named after Rachel Carson) James Leopold in Leesburg, Virginia.